United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3926

___________

Cindy Mohr, *

 *

Appellant, *

 * Appeal from the United States

v. * District Court for the

* District of Nebraska.

Dustrol, Inc., *

*

Appellee. *

*

__________

Submitted: June 10, 2002

 Filed: September 30, 2002 

___________

Before RILEY, BEAM, and MELLOY, Circuit Judges.

___________

MELLOY, Circuit Judge.

Cindy Mohr appeals the district court’s adverse grant of summary judgment in

her Title VII action against her former employer, Dustrol, Inc. We affirm in part and

reverse in part.
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I.

Dustrol is a paving maintenance company located in Lincoln, Nebraska. Mohr

worked for Dustrol as a flagger on the seasonal heating crew in 1997 and 1998. The

duties of a flagger involve controlling traffic in road construction zones by setting up

and taking down traffic signs, signaling cars to stop or slow, and driving a lead vehicle

through the work area. Although Mohr was occasionally reproached about her

performance – e.g., driving too fast and not doing her share of the more tedious signholding work – she received raises on a regular basis and there is nothing to suggest

that she was not considered, in general, a valuable employee. At some point after the

start of the 1998 season, and thus after all hiring and assignment decisions had been

made, a new foreman, Criz Sanchez, was assigned to the heating crew. According to

Mohr, Sanchez made derogatory comments throughout the 1998 season about the few

white workers on the crew and often said he wanted an all-Hispanic crew. 

Mohr testified in her deposition that she expected to be called back for the

1999 season. When she hadn’t heard from Dustrol by early spring, she called and

spoke with Sanchez. According to Mohr, Sanchez told her she would not be on his

crew that year because he was not going to have any females on his crew. Mohr

nevertheless submitted a formal application on March 19, 1999, and placed the heating

crew as her preferred assignment. 

Dustrol’s hiring and assignment decisions were officially made by Marc Heald

and Harlan Baehr. Per their affidavits, they were aware that Sanchez did not want

Mohr assigned to the heating crew for the 1999 season. They referenced Sanchez’s

reported problems with Mohr during the 1998 season – specifically that Mohr refused

to do the more menial work of placing and removing signs (because, inter alia, she

didn’t want to “break her long (fake) fingernails”) and wanted only to drive the flagger
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truck. Heald’s affidavit explicitly states that Sanchez “had requested that [Mohr] not

be put on the heater crew again because of work performance problems he had with

her.” 

Mohr was initially told there was no work available for her that season. In

response, she filed a complaint with the Nebraska Equal Opportunity Commission

(NEOC) alleging that Dustrol’s failure to rehire her constituted race, national origin

and gender discrimination. Around this same time, Dustrol called Mohr and offered

her flagging work on the milling crew, a job Mohr considered a demotion because it

offered less favorable hours and fewer opportunities for advancement to machine

operation. Mohr took the position and started work on April 26, 1999. On May 18th,

she quit. One month later, Mohr filed another complaint with the NEOC, alleging that

Dustrol retaliated against her for her earlier filing. In this second charge, Mohr

marked only “retaliation” as the basis for discrimination and left the boxes for race,

sex and national origin unchecked. 

On August 24, 2000, the NEOC issued a right to sue letter for each of the

filings. Mohr’s subsequent federal suit alleged discriminatory failure to hire, failure

to train and constructive discharge. The district court granted summary judgment to

Dustrol on all claims. On appeal, Mohr argues that genuine issues of material fact

remain as to whether she was discriminated against in failing to be rehired for the

heating crew and whether she was treated differently with respect to training. She also

argues that the district court erred in resolving the failure to train claim on grounds not

raised by Dustrol in its summary judgment motion.

II.

“We review a district court's grant of summary judgment de novo, giving the
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nonmoving party the most favorable reading of the record.” Gentry v. Georgia-Pacific

Corp., 250 F.3d 646, 649 (8th Cir. 2001). Summary judgment is appropriate only if

“the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). “When the evidence would support conflicting conclusions,

summary judgment should be denied.” Kells v. Sinclair Buick-GMC Truck, Inc., 210

F.3d 827, 830 (8th Cir. 2000) (citation omitted). 

A. Failure to Hire

Mohr’s failure to hire claim alleges that Dustrol’s decision not to rehire her for

the 1999 heating crew was the result of sex, race and national origin discrimination.

The district court found that Mohr applied too late to be considered for a position on

the heating crew, and, therefore, she could not establish a prima facie case of

discrimination. 

The framework for evaluating a Title VII discrimination claim depends on the

type of evidence presented in support of the claim. Where the plaintiff relies primarily

on circumstantial evidence, courts apply a tripartite analysis as set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that test, the plaintiff must first

establish a prima facie case of discrimination by showing that she was a member of

a protected class and suffered an adverse employment action that others outside her

class did not suffer. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

142-43 (2000) (discussing burden-shifting framework established by McDonnell

Douglas and progeny). The defendant may then offer legitimate, nondiscriminatory

reasons for the challenged action. Id. (citing Tex. Dep’t of Community Affairs v.

Burdine, 450 U.S. 248, 254 (1981)). If the defendant meets this production burden,
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the plaintiff must prove by the preponderance of the evidence that the

nondiscriminatory reasons offered by the defendant are not true, and instead were

pretext for discrimination. Id. at 143 (citations omitted). Significantly, “‘[t]he

ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.’” Id.(quoting

Burdine, 450 U.S. at 253).

In some situations, however, a plaintiff can produce direct evidence that an

illegal criterion was a motivating factor in the disputed employment decision. See 42

U.S.C. § 2000e-2(m) (“[A]n unlawful employment practice is established when the

complaining party demonstrates that race, color, religion, sex, or national origin was

a motivating factor for any employment practice, even though other factors also

motivated the practice.”). In those cases, the plaintiff is relieved of the ultimate

burden of persuasion and the so-called “mixed motive” analysis is applied. See

generally Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Gagnon v. Sprint Corp.,

284 F.3d 839, 847-49 (8th Cir.), petition for cert. filed, 71 U.S.L.W. 3162 (U.S. Aug.

19, 2002) (No. 02-273). Under the mixed motive analysis, “once the plaintiff

persuades a factfinder that, more likely than not, discrimination was ‘a motivating part

in an employment decision,’ the burden shifts to the employer to prove that the

employment decision would nevertheless have been made for legitimate, nondiscriminatory reasons.” Yates v. McDonnell Douglas, 255 F.3d 546, 548 (8th Cir.

2001) (quoting Price Waterhouse, 490 U.S. at 254). Such a showing will preclude an

award of damages although declaratory judgment, injunctive relief, and attorney’s fees

would still be possible. See 42 U.S.C. § 2000e-5(g)(2)(A) & (B); Gagnon, 284 F.3d

at 847-48; Browning v. President Riverboat Casino-Missouri, 139 F.3d 631, 634 (8th

Cir. 1998).

In this case, Mohr alleged that Sanchez made repeated derogatory comments

about non-Hispanics throughout the 1998 season, and told Mohr directly that she
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would not be on his crew in 1999 because he was going to have an all-male crew. The

district court did not treat these comments as direct evidence of discrimination because

it found “no evidence to indicate that [Sanchez] was ‘closely involved in employment

decisions.’” Mohr v. Dustrol, Inc., No. 4:00CV3280, slip op. at 7 (D. Neb. Sept. 6,

2001) (internal quotation omitted). Accordingly, the district court analyzed Mohr’s

claim under McDonnell Douglas. We disagree with the district court’s

characterization of the evidence and conclude that Sanchez’s alleged remarks could

reasonably be deemed direct evidence of discrimination for Title VII purposes.

“Direct evidence is that which demonstrates ‘a specific link between the

alleged discriminatory animus and the challenged [employment] decision, sufficient

to support a finding by a reasonable fact finder that an illegitimate criterion actually

motivated [the employer’s] decision’ to take the adverse employment action.” Deneen

v. Northwest Airlines, Inc., 132 F.3d 431, 436 (8th Cir. 1998) (quoting Thomas v.

First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997)). Not every prejudiced

remark made at work supports an inference of discrimination. See Price Waterhouse,

490 U.S. at 277 (O’Connor, J., concurring). Thus, “[w]e have carefully distinguished

between ‘comments which demonstrate a ‘discriminatory animus in the decisional

process’ or those uttered by individuals closely involved in employment decisions,’

from ‘‘stray remarks in the workplace,’ ‘statements by nondecisionmakers,’ or

‘statements by decisionmakers unrelated to the decisional process.’’” Rivers-Frison

v. Southeast Mo. Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998) (internal

quotations omitted); see also Kriss v. Sprint Communications Co., 58 F.3d 1276, 1282

(8th Cir. 1995) (requiring evidence of “conduct or statements by persons involved in

the decisionmaking process that may be viewed as directly reflecting the alleged

discriminatory attitude . . . sufficient to permit the factfinder to find that that attitude

was more likely than not a motivating factor in the employer’s decision”). 
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It is undisputed that Heald and Baehr were the Dustrol employees officially

responsible for hiring and crew assignments. However, the direct evidence inquiry is

not limited to those formally entrusted with decisionmaking duties. If a reasonable

factfinder could conclude that Sanchez was closely involved in the decision not to

rehire Mohr for the heating crew, then his alleged comments are relevant to the direct

evidence analysis. While Dustrol states that Sanchez does not make hiring decisions,

excerpts from both Heald’s and Baehr’s affidavits attest to Sanchez’s input where

Mohr was concerned:

Beahr affidavit, ¶ 14: Criz Sanchez had problems with Cindy [Mohr]

when she worked on his crew. Criz was not interested in having her

come back on his crew in 1999. Criz wanted Cindy to set up signs and

she either refused or just wanted to drive the pickup.

Heald affidavit, ¶ 5: Cindy [Mohr] came in on March 19, 1999 to apply

to work for the 1999 construction season. She started work on April

26, 1999. She did not begin to work earlier than April 26 because

Dustrol did not have work for her before then. She again put on her

application that she wanted to be a heater crew flagger. However, she

was not put on the heater crew. Criz had requested that she not be put

on the heater crew again because of work performance problems he had

with her.

Heald affidavit, ¶ 6: Criz did not want her back on his crew because

[Mohr] only wanted to drive the truck back and forth between the

flaggers. She did not want to get out of the truck. She did not want to

put out or pick up signs because she did not want to break her long

(fake) fingernails.

These excerpts support a finding that Sanchez played a pivotal role in Mohr’s

treatment by Dustrol. A reasonable inference arises that Mohr was not initially hired

in March because Sanchez did not want her on the heating crew and there was no other
1

 We again note that even if Dustrol is successful at making such a showing,

it is still potentially liable for declaratory relief, injunctive relief, attorneys fees and

costs. See 42 U.S.C. § 2000e-5(g)(2). “Whether or not [the employer] satisfies its

burden to show by a preponderance that it would have reached the same employment

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work available. Indeed, Heald’s and Baehr’s statements leave little room for any other

conclusion than that they deferred to Sanchez in making employment decisions

regarding Mohr. See Gagnon, 284 F.3d at 848 (“Courts look beyond the moment a

decision was made in order to determine whether statements or comments made by

other managerial employees played a role in the ultimate decisionmaking process.”).

Given this, Dustrol cannot assert Heald’s and Baehr’s lack of knowledge regarding

Sanchez’s alleged discriminatory animus to dispositively insulate itself from liability.

See id. at 848-49 (reversing summary judgment to employer after finding direct

evidence of discrimination, and concluding, “While [the COO’s] decision may have

ultimately been free of any discriminatory animus, we cannot sterilize a seemingly

objective decision when earlier discriminatory decisions lead to the adverse

employment action.”); Yates, 255 F.3d at 549 (reaffirming rule set forth in Stacks v.

Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994), that “[a]n

employer cannot escape responsibility for [] discrimination . . . when the facts on

which the reviewers rely have been filtered by a manager determined to purge the

labor force of [a protected class]”); Kientzy v. McDonnell Douglas Corp., 990 F.2d

1051, 1057 (8th Cir. 1993) (discussing cases from other circuits for same proposition).

Thus, for purposes of summary judgment review, Sanchez’s involvement in the

decisionmaking process and his alleged derogatory comments about the workplace

capabilities of women and non-Hispanics sufficiently establish the “specific link”

between the challenged employment action and the alleged animus. 

Having concluded that Mohr is entitled to the mixed motive analysis, our

review turns to whether Dustrol has proven that absent consideration of any illegal

criterion it would have taken the same employment action.1

 In other words, Dustrol
decision absent any discrimination is only relevant to determine whether the court

may award full relief including damages, court ordered admissions, reinstatement,

hiring, promotion or other such relief.” Gagnon, 284 F.3d at 848 (citations omitted).

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must show that no genuine issue remains as to its nondiscriminatory reason for failing

to rehire Mohr for the heating crew when she applied in March 1999. Dustrol’s

position is set out in Baehr’s affidavit, at paragraph seven, in which he states: “All of

the flaggers hired prior to Mohr in 1999 had completed their application forms prior

to the date Mohr submitted her application. No flagger was hired by Dustrol before

Mohr, who had applied after Mohr.” (emphasis in original).

Dustrol asks us to read these statements as conclusive proof that its decisions

regarding Mohr were based solely on timing, a completely objective criterion. First,

we note that Mohr has raised a factual question as to whether the formal application

process was a prerequisite to placement in her case. Mohr’s deposition testimony

suggests that she expected Dustrol to contact her for seasonal work as it had done in

prior years. See Gentry, 250 F.3d at 652 (stating failure to formally apply will not be

deemed fatal to discrimination claim where job opening was not officially advertised

and employer was aware of plaintiff’s interest). We need not determine whether

Mohr’s showing on this point rises to the level of a genuine issue, however, because

Heald’s statements, in and of themselves, are insufficient at summary judgment to

prove Dustrol would have made the same employment decisions regarding Mohr

absent Sanchez’s involvement.

Heald’s statements do not mandate a finding that all of the positions on the

heating crew were filled prior to Mohr’s application and Dustrol has offered no

evidence to that effect. Nor has Dustrol presented evidence of a “first-come firsthired” policy. Instead, there is merely the assertion that “no flagger was hired by

Dustrol before Mohr who had applied after Mohr.” Absent more, this language is
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insufficient to prove as a matter of law that Mohr’s application was treated with

complete neutrality. And when viewed in conjunction with Sanchez’s documented

criticisms of Mohr’s abilities, there is a reasonable inference that factors other than

timing affected the decisionmaking process. In short, taken as a whole and granting

Mohr all reasonable inferences, the record belies Dustrol’s assertion that Mohr simply

applied too late for consideration on the heating crew. Accordingly, summary

judgment on the failure to hire claim is inappropriate. See Johnson v. Minn. Historical

Soc’y, 931 F.2d 1239, 1244 (8th Cir. 1991) (“All the evidence must point one way and

be susceptible of no reasonable inferences sustaining the position of the non-moving

party [before summary judgment is appropriate].”).

B. Failure to Train

Mohr’s failure to train claim alleges that throughout her employment with

Dustrol she was not given the same training opportunities as male employees. Mohr

asserts that, despite her repeated requests, only male employees were taught to operate

the pavement heaters and other large machines. She also claims that, unlike the male

employees, she was not allowed time at work to study for her commercial drivers

license, which would have facilitated advancement. The district court found that

Mohr’s allegations could support a prima facie case of sex discrimination, but granted

summary judgment because Mohr had failed to exhaust her administrative remedies

with regard to such a claim. Mohr argues that the district court was not at liberty to

grant summary judgment on this basis since Dustrol had not raised the administrative

exhaustion issue in its summary judgment motion. Mohr further argues that the

district court’s decision was substantively wrong. 

Mohr is correct that a district court may not grant summary judgment sua

sponte unless the nonmovant has been notified and given an opportunity to respond.
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See Am. Red Cross v. Community Blood Ctr., 257 F.3d 859, 863 (8th Cir. 2001);

Walker v. Mo. Dep’t of Corrections, 138 F.3d 740, 741-42 (8th Cir. 1998); Williams

v. City of St. Louis, 783 F.2d 114, 116-17 (8th Cir. 1986). A close reading of these

cases, however, reveals that this general rule is largely inapposite here. Each of the

cases cited by Mohr involves a reversal of summary judgment where the district court

made a determination on the merits of a claim, or element of a claim, not raised or

addressed by either party. Thus, in Walker the employer moved for summary

judgment on Walker’s ADA claim solely on the grounds that the plaintiff was not a

“qualified individual with a disability” under the ADA. Walker, 138 F.3d at 741. The

district court, however, based its ruling in the employer’s favor on a different element

– that the plaintiff could not show an adverse employment action. Id. at 741-42. This

was deemed reversible error since the plaintiff “did not have sufficient notice that the

third element was in issue.” Id. at 742. Similarly, in American Red Cross, we

reversed the district court’s summary judgment disposition of three tortious

interference claims because the moving party had not addressed those particular claims

in its summary judgment motion. Am. Red Cross, 257 F.3d at 862-63. Finally, in

Williams, which involved two co-defendants, the district court granted summary

judgment in favor of both defendants even though only one had moved for it.

Williams, 783 F.2d at 115. We reversed, holding that strict compliance with Federal

Rule of Civil Procedure 56 would not permit what was, technically, a sua sponte

summary judgment ruling in favor of the non-moving co-defendant. Id. at 116. 

We find it significant that in this case the district court did not reach the merits

of Mohr’s Title VII failure to train claim. Rather, the district court reviewed only

whether Mohr had exhausted her administrative remedies with regard to such a claim.

It is well-settled that exhaustion of administrative remedies is a jurisdictional

prerequisite to a private civil action under Title VII, and that the proper reach of a

Title VII claim is a legal issue. See 42 U.S.C. § 2000e-5(e); McDonnell Douglas

Corp., 411 U.S. at 798 (describing “jurisdictional prerequisites to a federal action” as
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including receipt by plaintiff of Commission’s statutory notice of the right to sue);

Ross v. Douglas County, Neb., 234 F.3d 391, 395 (8th Cir. 2000) (noting Title VII’s

“mandatory exhaustion requirement whereby claims must first be presented to the

NEOC before a plaintiff can sue in Federal Court”). See also Nichols v. American

Nat’l Ins. Co., 154 F.3d 875, 886 (8th Cir. 1998) (characterizing determination of

scope of Title VII claim as a legal issue). Although challenges to the scope of a Title

VII claim frequently arise at the summary judgment stage, we have never held that the

issue may only be addressed through Rule 56. To so hold would undermine the

purpose of Title VII’s administrative remedies provision which is “to provide the

Commission an opportunity to investigate and attempt a resolution of the controversy

through conciliation before permitting the aggrieved party to pursue a lawsuit.” Cobb

v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988) (citations omitted); see also Shannon

v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir. 1996) (reiterating that “exhaustion of

administrative remedies is central to Title VII’s statutory scheme” (citations omitted)).

Moreover, it would lead to the anomalous result that Title VII’s mandatory exhaustion

requirement would be enforced only where invoked by a private litigant.

We recognize that whether a plaintiff has exhausted administrative remedies

with regard to a particular Title VII claim may, at times, involve a relatively factintensive analysis, and we recommend that, in those cases, district courts provide

plaintiffs with an opportunity to address the issue prior to ruling on it. We make no

strict requirement to that effect, however, and conclude that, in this case, the facts

relevant to the exhaustion determination were fully set forth in the pleadings and

attendant NEOC documents. 

In a recent case, we summarized the standard for determining whether a

plaintiff has properly exhausted administrative remedies prior to suit:
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“In determining whether an alleged discriminatory act falls within the

scope of a [discrimination] claim, the administrative complaint must be

construed liberally ‘in order not to frustrate the remedial purposes of

[the anti-discrimination statutes]’ and the plaintiff may seek relief for

any discrimination that grows out of or is like or reasonably related to

the substance of the allegations in the administrative charge.” Nichols

154 F.3d at 886-87 (citations and internal citation omitted).

“Accordingly, the sweep of any subsequent judicial complaint may be

as broad as the scope of the EEOC ‘investigation which could

reasonably be expected to grow out of the charge of discrimination.’”

Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988) (citation omitted).

Allegations outside the scope of the EEOC charge, however,

circumscribe the EEOC’s investigatory and conciliatory role, and for

that reason are not allowed. Williams v. Little Rock Mun. Water

Works, 21 F.3d 218, 223 (8th Cir. 1994) (citation omitted).

Kells, 210 F.3d at 836.

After de novo review, and viewing all facts in the light most favorable to Mohr,

we agree with the district court that Mohr’s failure to train claim was not

administratively exhausted. See Nichols, 154 F.3d at 886 (stating standard of review).

Mohr’s claim is clearly outside the scope of her first administrative complaint which

challenges only Dustrol’s failure to rehire her for the 1999 season. A failure to train

is not the type of treatment that is like or reasonably related to an administrative

charge of discriminatory failure to hire. A failure to hire is a discrete act of

discrimination, particularly in this case where Mohr’s NEOC charge alleged that the

discriminatory actions occurred between March 29 and April 2, 2000. An

investigation into such a charge would not encompass unalleged, ongoing disparate

training claims. And, as would be expected, the Commission’s findings in this case

make clear that its investigation was limited to the circumstances surrounding the

failure to hire allegation. See Tart v. Hill Behan Lumber Co., 31 F.3d 668, 672 (8th

Cir. 1994) (affirming the dismissal of an unexhausted racial harassment claim and
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finding it relevant that “a discharge is a completed act at the time it occurs” whereas

a claim of racial harassment focuses on pervasiveness of the racially discriminatory

conduct). 

Mohr’s second NEOC charge, filed two months later, includes a failure to train

allegation but asserts only retaliation as the basis for the disparate treatment. There

is nothing in the complaint that would advise the Commission of any other asserted

bases for discrimination. To the contrary, the complaint is highly specific and

narrowly circumscribed, emphasizing that the alleged discriminatory treatment

occurred between April 26 and May 18, 1999, and was in retaliation for Mohr’s earlier

filing with the NEOC. The substantive allegations are, for the most part, completely

neutral regarding sex, race and national origin. Nothing suggests that Mohr believed

discrimination on those grounds, rather than retaliation, was driving the disparate

treatment complained of in the second charge. 

Mohr argues that the two charges should be construed together for purposes of

administrative exhaustion. In other words, the substantive allegations in the second

NEOC charge should be read in conjunction with the asserted bases of discrimination

in the first NEOC charge so that she has properly exhausted a claim for discriminatory

failure to train based on sex, race and national origin. We rejected a similar argument

in Williams v. Little Rock Municipal Water Works, 21 F.3d 218 (8th Cir. 1994). In

that case, the plaintiff contended that her 1990 retaliation charge was linked to a 1987

race discrimination charge and thus the Title VII race discrimination claims brought

in 1990 were properly exhausted. See id. at 222. She argued that the district court’s

dismissal of her discrimination claims resulted from a crabbed and technically precise

reading of her administrative complaint. See id. at 223. Our discussion in that case

applies equally here:
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Williams’ claims of race discrimination are separate and distinct from

her claims of retaliation. Not only did Williams fail to check the box

for race discrimination, her 1990 EEOC charge and supporting affidavit

specifically and unambiguously alleged that Water Works retaliated

against her because she had filed a charge with the EEOC in January

1987. The 1990 EEOC charge does not even hint of a claim of race

discrimination. This amounts to more than a mere technicality and is

the product of an unconstrained reading of Williams’ charge. The only

claim properly addressed by the EEOC administrative processes was

that of retaliation. 

Id.

We agree with the district court that, in all significant respects, Mohr’s case is

analogous to Williams. Although Mohr’s two NEOC filings were closer in time, the

second filing unambiguously directed the Commission to investigate retaliation

charges only, and its specificity, following so closely on the heels of the first filing,

acted to further distinguish and isolate the substantive allegations within each of the

complaints. See Shannon, 72 F.3d at 685 (discussing Williams and agreeing that mere

reference to previous discrimination charge in subsequent retaliation charge “was not

enough to exhaust, for Title VII purposes, the discrimination claim”).

We note that even if we took Mohr’s broad view and construed the charges

jointly, we would still conclude that her Title VII failure to train claim exceeded the

scope of her NEOC charge. The gist of Mohr’s Title VII claim is that over the course

of her three seasons with Dustrol she was denied the same training opportunities as

male employees. Her NEOC charges involved only a brief period in 1999, and the

Commission’s findings make clear that its investigations covered only this limited

period. To allow Mohr to bring a failure to train claim in this case would improperly

circumscribe the NEOC’s investigatory and conciliatory role and deprive Dustrol of

notice of the charge. See Williams, 21 F.3d at 222-23. See also Shannon, 72 F.3d at
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685 (“[T]here is a difference between liberally reading a claim which ‘lacks

specificity,’ and inventing, ex nihilo, a claim which simply was not made.”) (internal

citation omitted) .

III.

For the reasons discussed herein, we reverse the district court’s grant of

summary judgment on Mohr’s failure to rehire claim, and affirm the dismissal of

her failure to train claim. The case is remanded for further proceedings consistent

with this opinion.

BEAM, Circuit Judge, dissenting.

I agree with the result reached by the district court. Accordingly, I

respectfully dissent from the reversal of the failure to hire claim asserted by Ms.

Mohr.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.